11 N.Y.S. 492 | N.Y. Sup. Ct. | 1890
Dissenting Opinion
(dissenting.) This proceeding appears to have been instituted by the receiver of the Russel Coe Fertilizer Company, an insolvent corporation, to obtain the direction of the court in respect to the payment of the claim of Robert C. Davidge. The first paper in the appeal-book is a notice of motion for the appointment of a referee “to take testimony and report concerning the controversy between the said receiver and Robert C. Davidge, respecting the claim of said Davidge, submitted to the said receiver, for $3,279.20, which claim said receiver has disallowed.” Upon this notice, an order was made appointing a referee “to take testimony and report the same, with his opinion thereupon, touching the claims in-controversy aforesaid.” The evidence which appears in the appeal papers-was taken before the referee, who, instead of simply reporting the same-with his opinion, made findings in the form usual upon the trial of issues, followed by a conclusion of law to the effect that Robert C. Davidge was not a creditor of the defendant, and had established no valid claim against the corporation. The appellant thereupon filed exceptions to certain-portions of the report, and the matter was brought to a hearing at special term, where an order was made, in effect, modifying the decision of the referee that the claimant was not entitled to be paid at all, and directing that his claim be paid, if sufficient assets remained in the hands of the receiver after the payment in full of all other claims against the Russel Coe Fertilizer Company. From that portion of the order which thus postpones his claim, Mr. Davidge has appealed.
The opinion of the learned judge at special term indicates that he regarded-the view of the facts adopted by the referee in his so-called findings as substantially correct. According to these findings, the trustees of the defendant corporation entered into an agreement with the appellant to pay him a salary at the rate of $4,000 a year for his services as president and general manager of the company; and a balance of $1,945.87 on account of such salary still re
Lead Opinion
I agree with Mr. Justice Bartlett that the promise alleged to have been made by Davidge to Nichols & Co. is not enforceable by the-receiver as the representative of the company, or of its stockholders generally; but I cannot concur in the conclusion that such promise is enforceable by the-receiver as the representative of Nichols & Co. The receiver does not represent any particular creditor, nor has he any privity in the disputes between-individual creditors growing out of special arrangements between themselves, such as are set up in this proceeding. If Nichols & Co. are entitled to exclude Davidge, or to take for themselves the w'hole or any part of the dividend coming to him, they must act directly. The receiver‘cannot, for their benefit, avail himself of any estoppel which may have inured to them. But, further, I am of opinion that no case for Davidge’s exclusion, even as against Nichols & Co., has been made out. The agreement on that head is too vague- and indefinite for enforcement. Nichols & Co. did not bind themselves to refrain from proceeding against the company for any given period, nor was-the period of Davidge’s forbearance, with regard to his salary, stipulated. There was neither a valid consideration nor mutuality. Now that the company is in the hands of a receiver, I can see no good reason for discriminating-between these creditors. They should share alike. Davidge’s claim, however, is only for the sum of $1,945.87, that being the amount which had accrued at the date of the appointment of the temporary receiver. The order should be reversed, and the receiver directed to admit Davidge’s claim to the above-extent as valid, and to pay it pro rata with the other claims against the com-' pony.
Concurrence Opinion
I concur with Mr. Justice Barrett upon the ground that no valid agreement has been proven.